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A Secretary of State for Home Department

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In light of the legal theory below, critically assess the judgements in A v Secretary of State for Home Department [2004] UKHL 56. What, if anything can the judgements tell us about legal theory? The question posed here provides a remarkable range of issues that are available for analysis by means of legal theory. The legal, political, social and moral constructs that provide the underpinning to the various approaches taken by the House of Lords in A v Home Secretary[1] are not capable of a simple pigeon holing into a defined category. It is submitted that the most fulsome analysis of A v Home Secretary is achieved through the use of positivist theory to examine all of the opinions contained within the judgement. The positivist approach of H.L.A Hart as developed and advanced through his own writings and those of subsequent contributors and commentators, is employed to establish the necessary analytical framework. Where necessary, other legal theories are employed to explain distinct features of the judgement, particularly the relationship between the Lords’ opinions and the application of the rule of law. The Anti-terrorism, Crime and Security Act[2] (‘the Act’) is a clear manifestation of positive law principles. The terrorist threat advanced by al-Qaeda that exploded in the September 11, 2001 attacks in the United States had been rumbling throughout the Western world since the 1980s. The threat to nations such as Canada[3] and the UK was perceived to be more acute due to the strong alliances that each nation had with the United States. The Act was an amendment of legislation passed in 2000 in the UK[4] in response to this rising threat. Further, it is of some significance that the UK had extensive experience with terrorist incursions primarily arising from the conflict in Northern Ireland; those domestic threats had also been the subject of legislation that imposed limits on what were otherwise civil liberties.[5] These background points are of significance because the UK had an unfortunate domestic history with Irish-based terrorism that provided its government with a level of experience and insight into terrorist activities. The Act possesses the following distinct features:
  1. the power to arrest suspected terrorists
  2. the power to deport non-UK nationals who are suspected terrorists
  3. the power to detain those non-UK terrorists who could not be deported without breach of European and International conventionstn6" rel="nofollow">[6]
The UK government was permitted to derogate from the provisions of the Human rights Act and the ECHR regarding the right to trail and the right to challenge detention as the circumstances of the terrorist threat constituted a public emergency and exceptional circumstance. [7] The battle lines were clearly drawn by the time the present appeal was heard in 2004, as all appellants were non-UK nationals; none were charged with a criminal offence; none were likely to be charged; all challenged the legality of their detention and the legality of the derogation order as one that contravened the ECHR.[8] The Act is proffered as a classic example of a positivist enactment because it embodies the twin ideals of (1) legislation is not connected to moral concerns; the government acknowledged that the appellants were a minority segment in society but the greater good and the prevention of terrorism must prevail; (2) the Act pays little heed to the concept of human rights of the related moral considerations of discrimination being carried out by the government against a defined segment of the population The Act seeks a legislative result absent moral considerations, a fundamental principle of positivist theory that has been developed since the time of Austin.[9] As emphatic an example of positive law is represented by the Act, the House of Lords judgements that the derogation Order was illegal and that the subject sections of the Act were incompatible with the ECHR was a triumph of natural law principles recast in modern time. The natural law focus of the Lords’opinions are often masked with the clinical language of statutory interpretation, stare decisis, and the principle of proportionality. All of these devices disguise an approach[10] that is simply the law being employed as a moral instrument for a moral purpose. In the conclusion to this paper, the sequel decision, A & Ors v. Secretary of State for the Home Department (No.2)[11]takes the natural law approaches of the current decision to their logical conclusion. As is suggested in greater detail below, the entirety of the House of Lords approach is in general accord with the principles of legal positivism as explained by Hart.[12] Hart had written in 1976 that ‘… at a time when…substantive issues of social policy are much discussed in terms of individual rights, we still need a satisfactory theory of basic human rights and their relationship with other values pursued through the law. So too, if positivism in jurisprudence is to be finally laid to rest, we still need a demonstration that an expanded concept of law, which includes for every legal system a unique set of justicatory principles as a reserve for the solution for hard cases, will illumine and not obscure the description and performance of the judge’s task”.[13] This particular selection from Hart’s extensive writings is not as widely quoted as others often taken from his work but it is one clearly of direct application in the present review. Both the anti-terrorism legislation as enacted by the government and the House of Lords opinions fall neatly within the parameters of the issue as Hart has characterised it. From the government perspective, engaged in making a proper response to a profound threat to the UK, the Act is an attempt to resolve a ‘hard case’ that would seemingly call for a unique consideration. From the Lords perspective, their approach, although not articulating a specific legal theory, clearly regard the issues from the perspective of an ‘expanded concept of law’, where the court melds principles of law, social policy and basic human rights. In this context, the words of Lord Bingham, the leading expositor of the Lords position make a compelling connection to the ideas expressed by Hart. A true positivist (and those who hold classic conservative political values) would not accept the failure of a court to maintain the concepts of morality and law as separate. Lord Bingham explained the Lords position in terms that endorse such approaches (the following points are not exhaustive):
  • The reliance upon Chahal in the context of a terrorist threat; where a UK non-national faces torture or the death penalty if deported, no detention is lawful even where there is a threat to national security[14]
  • Derogation is an exceptional measure requiring actual and imminent danger; Lord Bingham limits the government’s purported deference in policy matters through rigorous application of stare decisis principles[15]
  • Other nations were also threatened with terrorist activity in Europe; only the UK employed derogation
  • The government discretion must be given deference and ‘great weight’ (a positivist sentiment); the Lords sidestep this barrier with the position that, among others, the ECHR provisions cannot be overridden with government deference alone[16]
  • The ‘libertarian’ tradition of UK laws is emphasised and juxtaposed with Article 5, ECHR[17]
  • The rule of law is highlighted as a ‘cornerstone’ of UK justice[18]
  • The Lords make a plain policy based pronouncement in their assertion that the differing standards for the detention of UK and non-UK nationals may contribute to the export of terrorism[19]
It is plain that The House of Lords adopted an approach to the issues raised by the Act and derogation from the Human Rights Act and the Convention that is one that is similar in its execution to the theoretical proposal of Hart described above. The Lords have plainly used conventional legal theory to achieve a policy end. It must be emphasised that the manner in which the Lords approached the difficult circumstances presented has significant merit. The modern dynamic of domestic considerations being adjudicated against a mixed backdrop of UK precedent, European Community imperatives and domestic policy concerns is a scenario that is far more challenging for the judiciary than has ever existed in UK legal history. As Hart suggested 30 years ago, a satisfactory theory of basic human rights vis a vis the law is necessary; the present case represents such an effort. The criticism of the decision is not its methodology or result, but the fact that the Lords were not prepared to clearly state that theirs was a blended approach of law, policy, and human rights considerations. There are other powerful examples within the judgement that make this pint effectively. Lord Nicholls stated the issue on the appeal in classic terms - ‘…Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law.(emphasis added)’[20] Lord Nicholls then held that the government effort to provide an option in the context of the legislative scheme that would alleviate the consequences of indefinite detention, the so-called ‘prison with three walls (so named because detainees retained their rights to leave the UK) was found wanting as a policy measure. Lord Hoffman attacked the Act obliquely, with the trenchant observation that the same UK government had relied upon faulty evidence as to the existence of weapons of mass destruction in the lead up to UK involvement in the Iraq war. One may ask whether there could be a more powerful policy, as opposed to application of legal theory, than this criticism of the legislation.[21]The point hinted at in these observations is evident - that if the government could not be trusted to handle the Iraq situation, should the same government be trusted now? In a similar vein Lord Scott indicated that the impact of the declaration of incompatibility was ‘political’, not legal.[22] Lord Hope engaged in perhaps the purest legal analysis of the Act, as his reasons do not include the same degree of political and social overtones. Lord Hope turns the utilitarian approach on its head, in holding that the state may not discriminate against an unpopular minority for the good of the majority.[23] The judgements of the House of Lords taken together, may be seen as advancing a fundamental principle of law – ‘…there is one residual principle that backs them all up and gives guidance where they are silent. This is the principle that human happiness ought to be promoted and misery prevented as far as possible. Through its application, human love to a degree replicates divine love. Hence, within many branches of natural law thinking, the usefulness, or 'utility' of human laws for upholding rights derivable from higher law and, beyond that, for fostering human happiness in general, has been one ground for commending such laws, or for recommending improvements in them.’[24] The full impact of the predominately natural law approach (or mixed law approach as per Hart) is appreciated when one reviews the sequel judgement, A & Ors v. Secretary of State for the Home Department (No. 2)[25]. The issue before the House in the sequel case was of a different character – the admissibility of evidence obtained by torture where the UK was not complicit in the torture. Lord Bingham set out a lengthy analysis of the common law and the place of torture within that framework. He and the other Lords were unanimous that torture had no place in the UK common law system, a succinct commentary that engaged principles of morality, the natural law, stare decisis, and the rule of law. Lord Bingham also interjected into the analytical framework two notions that extended the moral considerations. The first was the concept of a ‘civilised society’[26]and the desire to maintain civility absent torture. This reference invites the rhetorical question of whether or to what extent a civilised society may use harsh or uncivilised means to preserve civility? The second moral interjection was the citation with approval of the Supreme Court of Canada decision in Oickle.[27]Oickle, and other recent Canadian and American case law, stands for the proposition that certain government actions can be disavowed by a court if the actions is seen as one that ‘shocks the community standard’. Oickle is the product of a jurisdiction with a written constitution; however, the apparent elevation of this principle to a standard to be invoked in the UK courts is a further departure from any hold that positivism may have exerted in these constitutional considerations. The House of Lords has re-established the primacy of morality in the manner that the Court will assess government action. Hart’s formulation of law as one compromised of primary and secondary rules is well known. It is submitted that the approach adopted by the House of Lords to the thorny issues of law, morality, human rights and social policy in A v Home Secretary is in general accord with Hart. Bibliography Austin, John (1863) The Uses of the Study of Jurisprudence (ed. H. L. A. Hart London, 1954) Freeman, M. D. A. (1998) Legal Theory at the End of the Millennium Oxford: Oxford University Press Hart, H.L.A. (1976) ‘Law in the perspective of philosophy: 1776 – 1976’, 51 New York University Law Review, 538-551 Hart, H.L.A. (1961) The Concept of Law Oxford: Clarendon Table of Cases A & Ors v. Secretary of State for the Home Department [2005] UKHL 71 (8 December 2005) A & Ors v. Secretary of State for the Home Department [2004] UKHL 56 Brannigan and McBride v United Kingdom (1993) 17 EHRR 539 Chahal v United Kingdom (1996) 23 EHRR 413 Ireland v United Kingdom (1978) 2 EHRR 25; Marshall v United Kingdom (10 July 2001, Appn. No. 41571/98) R v Oickle [2000] 2 SCR 3 Table of Statutes Anti-terrorism, Crime and Security Act 2001 (Part 4) Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644) European Convention on Human Rights Terrorism Act, 2000 1


[1] [2004] UKHL 56 [2] Anti-terrorism, Crime and Security Act 2001 (Part 4) [3] Canada enacted similar legislation as that in the UK; it was subject to different scrutiny due to the primacy of Canada’s written constitution and its enshrined Charter of Rights and Freedoms. [4] Terrorism Act, 2000 [5] See e.g. Brannigan and McBride v United Kingdom (1993) 17 EHRR 539 [6] European Convention on Human rights, art. 14; see also Chahal v United Kingdom (1996) 23 EHRR 413 [7] A & Ors v. Secretary of State for the Home Department [2004] UKHL 56, para 15 [8] Ibid, para 22 [9] Austin, John Jurisprudence , 1 [10] All of the judgements delivered in A take this direction; [11] [2005] UKHL 71 [12] Hart, H.L.A (1961) The Concept of Law [13] Hart, H.L.A. (1976) ‘Law in the perspective of philosophy: 1776 – 1976’, 51 New York University Law Review, 538-551 [14] Chahal, p.420 [15] A [2004], para 19 [16] Ibid, para 29, 55 (Lord Bingham); para 90 (Lord Hoffman); para 108 (Lord Hope) [17] Ibid para 35 [18] Ibid para 42 [19] Ibid para 53 [20] Ibid, para 74, 80 [21] Ibid, para 94 [22] Ibid, para 154 [23] Ibid, para 136 [24] Freeman, M. D. A. (1998) Legal Theory at the End of the Millennium Oxford: Oxford University Press, 38 [25] [2005] UKHL 71 [26] Ibid, para 17 [27] R v Oickle [2000] 2 SCR 3
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